HEARING LOSS

Summary

The veteran, who served in the Army for ACDUTRA from January 1985 to June 1985, appeals the denial of service connection for left ear hearing loss. The veteran claims this condition is due to acoustic trauma experienced during service, specifically mentioning exposure to hazardous noise, simulated bombs, and weapons fire during basic training. The Board noted that the veteran was first diagnosed with left ear hearing loss for VA purposes in December 2023, which is outside the one-year period for presumptive service connection for chronic diseases. Furthermore, service treatment records (STRs) were silent regarding any complaints, treatments, or diagnosis of left ear hearing loss during service, and there was no evidence of continuity of symptomatology. While the veteran testified about noise exposure and current hearing impairment, two VA examinations were conducted. The initial December 2017 examination found no hearing loss meeting VA criteria. The subsequent December 2023 examination showed worsening hearing loss that met VA criteria, but the VA examiner ultimately concluded that the hearing loss was less likely than not etiologically related to the claimed in-service noise exposure, citing a lack of chronicity and continuity from service. The Board found the December 2023 VA opinion dispositive, noting its well-reasoned rationale based on a review of the claims file and STRs. The Board concluded that the weight of the competent medical evidence was against the claim, and the veteran's lay statements were outweighed by the objective medical evidence. Service connection for left ear hearing loss was denied.

Rationale

Diagnosis of left ear hearing loss occurred outside the one-year period for presumptive service connection.; Service treatment records are silent for complaints, treatments, or diagnosis of left ear hearing loss.; No probative evidence of continuity of symptomatology from service.; VA examinations did not support a service connection.; Weight of competent medical evidence is against the claim.

Full Decision Text

Citation Nr: 24016374
Decision Date: 04/17/24	Archive Date: 04/17/24

DOCKET NO. 19-07 779
DATE: April 17, 2024

ORDER

Entitlement to service connection for left ear hearing loss is denied.

FINDING OF FACT

The persuasive evidence of record is against a finding that the Veteran's left ear hearing loss is related to his active-duty service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty for training (ACDUTRA) in the Army from January 1985 to June 1985, with additional service in the Army National Guard and Army Reserves. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2022, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) via a video teleconference hearing. A transcript of the hearing is of record.

Service Connection

Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).

Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

1. Entitlement to service connection for left ear hearing loss.

The Veteran seeks service connection for left ear hearing loss, claimed to be due to his acoustic trauma experienced during military service. 

As an initial matter, the Board notes that hearing loss is considered to be a chronic disease for VA purposes. However, the evidence of record reflects that the Veteran was first diagnosed with left ear hearing loss for VA purposes in December 2023, well outside the one year period following his separation from service in 1985. As such, service connection based on a chronic disease manifesting to a compensable degree within one year of separation is not warranted. 38 C.F.R. §§ 3.307(a)(2), 3.309(a).

Additionally, the record does not reflect that a diagnosis of left ear hearing loss was noted during service, nor does the record reflect that the Veteran has had continued left ear hearing loss since service. Therefore, as the Veteran's left ear hearing loss was not incurred until almost a decade after service, with no probative evidence of continuity of symptomatology, presumptive service connection for this disability as chronic diseases is not warranted.

Although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However so, the evidence of record does not support a conclusion that the Veteran's left ear hearing loss was related to his active service.

The Veteran's service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of left ear hearing loss, or any symptoms related to the Veteran's left ear. 

In the April 2022 Board hearing, the Veteran testified that during basic training, he was exposed to hazardous noise, similar to bombs, that led to his hearing issues. His hearing is now impaired, and he must ask others to repeat themselves constantly. 

The Veteran was afforded two separate VA examinations to assess the nature and etiology of his claimed left ear hearing loss in December 2017 and December 2023.  Upon his initial audiological examination in 2017, the Veteran was not diagnosed with hearing loss in his left ear, for VA purposes.  Objective audiometric testing conducted during the examination did not meet the criteria for hearing loss under VA standard for hearing loss, with regards to pure
 to the Veteran's left ear. 

In the April 2022 Board hearing, the Veteran testified that during basic training, he was exposed to hazardous noise, similar to bombs, that led to his hearing issues. His hearing is now impaired, and he must ask others to repeat themselves constantly. 

The Veteran was afforded two separate VA examinations to assess the nature and etiology of his claimed left ear hearing loss in December 2017 and December 2023.  Upon his initial audiological examination in 2017, the Veteran was not diagnosed with hearing loss in his left ear, for VA purposes.  Objective audiometric testing conducted during the examination did not meet the criteria for hearing loss under VA standard for hearing loss, with regards to puretone thresholds or speech/word recognition. 

In December 2023, however, the Veteran's VA audiometric examination demonstrates worsening with regard to both puretone thresholds and speech recognition, the Veteran's left ear hearing loss did meet the criteria for hearing loss on both accounts.  However, upon a noted review of the Veteran's claims file and medical history, to include the Veteran's STRs, the VA examiner ultimately concluded that the Veteran's hearing loss was less likely than not etiologically related to any aspect of the Veteran's claimed inservice noise exposure during serviced.  To this end, the examiner provided a rationale noting the lack of chronicity and continuity from service, to include any permanent auditory damage to his left ear during service.  The examiner noted accounts with regards to the Veteran's noted inservice noise exposure, to include exposure to simulated bombs and weapons fire, however, still conclude that such was not etiologically related to his currently diagnosed hearing loss. 

The Board finds that service connection on a direct basis is not warranted. While the medical evidence of record reveals a diagnosis for left ear hearing loss, it is void of any such medical link relating the Veteran's condition to his active service. To this end, the Board finds the December 2023 VA examination and opinion to be dispositive of the claims as it was concluded after not only an in-person examination of the Veteran's condition, but also provided a well reasoned rationale for its findings based on a noted review and analysis of the Veteran's medical history and STRs. Therefore, as there is no evidence to the contrary, the Board finds that the weight of the competent medical evidence is against the claim.

To the extent the Veteran's lay statements assert that he has left ear hearing loss related to service, the Board finds that these statements are outweighed by the competent and credible objective medical evidence of record. Additionally, the Veteran has not demonstrated that he has the requisite specialized knowledge and training to provide a medically complex opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

As such, the Board concludes that the persuasive evidence of record is against service connection, is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, the appeal is denied.

 

 

ZiHeng Zhu

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Carter, B.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.